30 August 2018

Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8

The Singapore High Court in Ermgassen & Co Ltd v Sixcap Financials Pte Ltd considered the Choice of Court Agreements Act with regard to an application for the enforcement of a foreign judgment in Singapore.

Singapore ratified the Convention on Choice of Court Agreements (“Convention”) on 2 June 2016 and it came into force for Singapore on 1 October 2016 with the passing of the Choice of Court Agreements Act (“Act”) and a new Order 111 of the Rules of Court. The present application was the first application to be brought under the Act.

Facts

Ermgassen & Co Limited (“plaintiff”), a company registered in the UK, filed an ex parte Originating Summons in the Singapore High Court (“Enforcement Application”) seeking the recognition and enforcement of a summary judgment made by the English High Court (“Summary Judgment”) against a Singapore registered company known as Sixcap Financials Pte Ltd (“defendant”).

Judgment

Section 8 of the Act provides that, subject to certain exceptions, the Act applies in every international case where there is an exclusive choice of court agreement concluded in a civil or commercial matter.

The court considered whether the Act was applicable in the present matter and found that the Summary Judgment fell within the Act’s scope for the following reasons:

  • Contracting State: The Summary Judgment is a judgment of the English court and the UK is a Contracting State as defined in the Act.
  • International case: The Enforcement Application was an “international case” within the meaning of the Act, given that the claim was for the recognition and enforcement of a foreign judgment.
  • Exclusive choice of court agreement: Based on documentation submitted by the plaintiff including the engagement letter between the parties and the pleadings filed by both parties in the UK proceedings, there appeared to be an exclusive choice of court agreement between the parties.
  • Civil or commercial matter: The plaintiff’s claim was for unpaid invoices issued to the defendant for financial advice and related professional services. The subject matter therefore appeared to be purely commercial in nature.
  • Interim measure of protection: The Enforcement Application did not seek the recognition and enforcement of any interim measure of protection which would be excluded by the Act.

Having found that the Summary Judgment fell within the scope of the Act, the court considered the merits of the Enforcement Application noting that the issue was whether the plaintiff had succeeded in satisfying the court, on an ex parte basis, that the Enforcement Application should be granted.

The court gave, as one of its reasons for the granting of the Enforcement Application, the inclusion of evidence that the plaintiff was heard on the Summary Judgment application, despite the fact that neither the defendant nor its counsel were present. The court therefore found that the Summary Judgment entered against the defendant appeared to be in the nature of a judgment on the merits of the case, as opposed to a default judgment. For the purposes of the Enforcement Application, therefore, it could be assumed that the defendant was duly notified of the Summary Judgment application which led to the Summary Judgment.

Order 111 rule 2(3)(a) of the Rules of Court provides that the plaintiff’s supporting affidavit must exhibit “a complete and certified copy of the foreign judgment (including the reasons, if any, for the decision of the court which gave the judgment)”. This provision is in pari materia with Article 13(1)(a) of the Convention.

The court found that the plaintiff could have provided more material to supplement the Summary Judgment but held that such omission was not fatal in the present case as the plaintiff had adduced extrinsic documents in support of its application, including a Certification Order by a different English court which certified some important points such as that the plaintiff’s claim form in the UK proceedings was served on the defendant and that the defendant acknowledged service of the claim form with no objection made to the jurisdiction of the English court.

For these reasons, the court granted the Enforcement Application.

 

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